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The judicial power of the US shall be vested in one Sct & in such inferior cts as the congress may from time to time ordain & establish

Art 3 Sec 2

SCt has OJ over all cases affecting ambassadors, other public ministers & counsuls & those in whihc a St shall be a party. Authority to hear all cases in which the US is a party. Authority to hear cases b/w a st & a foreign state. Has AJ in all other cases

Marbury v. Madison

Est Judicial Review
The Judicial Act of 1789 Sec 13 does confer OJ to Sct to hear mandamus but by doing so the statute is unconstitional

Why is section 13 of JA Unconst

Congress cannot give the judiciary more power than the Const grants. By deciding this way Marshall temporarily limited The Scts power but in the end creates JR b/c 1st time they have held a statute unconst

Facts Marbury

During interim b/w election & Jefferson coming into power the Adams created a bunch of judgeships stacked w/Federalsits, Jefferson was an Anti-Federalist. Created numerous justice of the peace

F Marbury con

Marshall then secretary of st signed the appts dispatched them but not all the apts were delivered b/4 Jeff was sworn in inc Marbury

Suit Mar v Mad

Marbury suing Madison new Sec of st under Jefferson to obtain writ to make him deliver the commission

Remedy sought

Mar asking the ct to deliver writ of mandamus. Mandamus: ct order req gov official to do what they're supposed to do.

JA Sec 13

Cojngress passed 13 of 1789 JA which purported to give Sct OJ over writ of mandamus

Mar Decision

Marshall sd Sec 13 unconst b/c it was not enumerated in the const
Entitled to commission? Y
Everything was done that had to be done. Signed, sealed just needed to be delivered

Q 2 Does Marbury have a remedy

Does Marbury have a remedy? Yes
Where the executive had a legal duty to act or refrain from acting & DN abide by that legal duty the fed judiciary can provide a remedy inc a writ of amndamus

Q 3 Does the Sct have authority to issue the writ?

No Mandamus is the proper remedy but it can't issue from Sct

Why can't Sct give writ

13 confers OJ over a class of cases outside of the orig list in Art III. the Statute is effectively taking something that was originally supposed to be AJ & shifting it to OJ. Ct says Congress can't do that

A/T mandamus is on the list (AJ) Mar & Congress want it shifted over. Mar/C Exceptions clause "with such exceptions as Congress may from time to time est" Allows.

Why Doesn't the exceptions clause allow transfer

Shifting is unconst b/c it cannot be presumed that any clause in the const is intended to be wo/effect & t/f such a cosntruction is inadmissible... If allowed shifts to occur the original deliniation wb meaningless. Want to honor the Const as fundamental laws. T/F the only meaning which gives effect to all clauses is determination that categories are mutually exclusive

No. JR power stems from the cts duty to resolve conflicts. Those who apply the rule to particular cases must of necessity expound & interpret that rule. If 2 laws conflict w/ea other the cts must decide on the operation of ea. Ct must decide which of the conflicting rules governs the case. This is the very essence of the judicial duty

Separation of powers

It WB giving to the leg's a practical & real omnipotence (if they could determine own powers). It is prescribing limits, & declaring that those limits may be passed by pleasure.

Framer's Intent

Framers contemplated certain clauses & rules tb appied by the cts when writing them. No person shall be convicted of treason unless on the testimony of 2 witnesses to the same overt act, or on confession in open ct. Here la of the C is addressed esp to the cts. Rx crim penalties for the cts to enforce. It is apparent that the framers of the C contemplated that inst as a rule for the govt of cts as well as elg

Judges are req'd to give an oath promising to uphold the const. Why would this be the case if they weren't to upohld the const

The oath of office is also imposed on the leg & the pres. T/F presumably the congress thought the law they were passing was const

Supremacy of the Const

The C is either a superior, paramount law, unchangeable by ordinary means or it is on a level w/ordinary lega cts & like other acts is alterable when the leg shall please to alter it

1. Exec branch could decide whether or not to enforce the law. Might veto
2. Congress could decide. They take an oath so if they pass a law it must be const
3. This argument mushes together 2 arguments what is the role of the ct in interperting the C 2) What is the status of the C

Marshall misdirects our atten: Does the ct have the authority to render acts of Congress unconst

Options
1. No the congress itself can
2. The pres may veto
3. The people Brown, seg
4. Ct says they have authority to decide what Congress's limits are

Suppose Congress acts in flagrant violation of Const what is the ct to do

When Marshall poses this way any R. person would say ct should have the power of JR to protect us. HW not likely situation b/c dealing w/C there are many interpretations which can be given. Alt interpreation of C & JR

Is the duty of the fed ct to say what the law is, to interpret & apply the rule

Incidental byproduct of case dealing function. JR power is no different: statute v constitutional the ct decides which rule governs the case

Hamilton Art No 78 Federalist

Essay written @ const debate. Hamilton argues that limits set forth in const wb ineffective absent judicial power to enforce the C. J. is the lesat dangerous branch to political rights est in C. JR Ct is performing special function to ensure the behavior of the other br of Fed gov confrom to the limitations of powers in the C

Sct Autohrity to Rev St Ct Judgments

Martin v HUnter's Lessee: Sct can rev st ct decisions
F: 2 conflicting claism to Va land. Martin claimed as devisee to Lord Fairfax, a Br citizen who owend prop. Hunter claimed that VA had taken the land b/4 treaties came into effect & t/f Martin DNH a valid claim to the prop

Va's Stance on Sct's decision to overturn Va's interpretation of fed law

1. Va & US both soverign separate spheres.
2. Va/c they are bound by fed law & that when there is a conflict fed law supersedes. No dispute that fed law is supreme. HW arguing that when sts cts resolve fed issues the st sct will be final

Sd Sct can rev st ct decisions. Story sd art 3 left disc to Congress w/respect to the allocation of J to fed cts. It is the case not the ct that gives J

Why is 25 const

You lk @ the way ARt 3 defines J it defines the type of hte case not who decided the case.

Plain meaning of 25

1. Plain meaning preferred in const construction
2. If la is clear & palin we're going to support the text unless there's some important reason to do otherwise

Va slippery slope argument

Its always a doubtful course to argue against the use or exsistence of a power from the possiblity of abuse

Role of st cts

1. St cts behave parochially. St cts look out for the residents of their own st.
2. B/C we expect them to behave parochially to protect their citizens no act outside the bounds fed govt steps in to referee

Reason fed gov't can rev final st ct decision

1. Story needs to be uniformity in the application & interpretation of fed law
2. Counter arg: Often times we want contrary results, we want sts to appluy the law to diverse situations; social policy. Areas of st laws are a reflectoin of that. Ex. law of easements differ based on st property concerns.

Alt ratoinale for 25 interp

1. Many members of Congress hwo voted for 25 were also drafters of the Const who better to understand what the const says than the drafters. Understanding at time const was drafted that sct would have app j over st cts

White Martin v Hunter

Process of interpretation cnb understood as mechanical it req the interpreter tb discrete in judgment? Why Lk to nature of natural law: its ambiguous & la req judgment. Isn't law which is based upon treating txt authoritatively foolish b/c there is no single meaning & the inherent uncertainty of law

Hart: M v H

Uncertainty is essential to const interpreation b/c there is no single meaning & the inherent uncertaintly of law. Essential to interpreters of legal rules b/c it enales jduges to recognize the full range of meanings & to avoid those interpretations that are most onorous

Ex Parte Mccardle F

Editor brought habeus proceeding. Gives ct hte power to grant HC to anyone restrained in violation of the const & also authorized appeals to the sct. Lower ct denied app to Sct

After Sct granted habeus review & heard arguments, Congress passed leg which took away the ability to appeal ahbeaus petition to the Sct

New Ex Parte McCardle Issue: What is the extent or scope of power under Art 3 to make exceptions to Scts AJ?

The excweptions power is power Cong has by leg to withdraw from Sct's AJ to hear certain cases. Cong could go so far as to totally eliminate AJ but WN b/c bad politics.

Extent of exceptions power

Remove not move: The exceptions power is not an ability to move from AJ to OJ

Use of Exceptions power

1. SB used in a careful bal
2. Unlmtd exceptions power serves to give Cong counter-chehck over decisions of Sct.
3. Where ct strays too far from popular will Congress can step in & strip power
4. Under this view failure of Cong's power might serve as Congressional acquiescene of this case

Essential function tehory

1. Congress may not use exception power to destroy the essential role of Sct in C by effectively leg it out of the picture
2. Essential function of Sct. Cong can't use exceptions power to destroy the essential function/authority of the sct
3. Core function to keep Cong wi/the C limits
4. If Congress can insulate certain laws from AJ by Sct then Congress can write the Sct out of the const plan

Critique of Essential functions theory

1. Inconsistent w/Marbury's rationale of JR as incidental
2. Basis for JR is not that ct has essential check-bal role to play. Rather JR power is the incidental byproduct of normal case deciding function
3. JR power DN define any role. DN tell us some essentail role function
4. Marbury just represents what the ct has the power to do

Defense to Critique

1. Underlying arg for JR under Marbury is more ambiguous than this.
2. Portions of the opinoin talk @ restrianing political branches in restraining power
3. Ct has special role to play as a disinterested party in appllying restraints

Independent Const Barriers Tehory

1. While ARt3Sec 2 says nothing @ limits of Cong poewr, but particular exercise of exceptions power has to be read in context w/entire doc
2. Limitations in other parts of C. Ex Congress under exercise of exceptions power CN pass law that says that only reg REpub could appeal b/c it would violate EPC

Practical Limitations on Cong Exceptions Power

1. Cong often responds to controversial decisions to Sct.
2. Important that they DN undue the decisions of the ct otherwise the effect will be to freeze the law.
3. Withdrawing J serves to preserve J that results in preserving the unhappiness
4. Eventually the ct will alter its view in response to understanding cases that come b/4 the ct that challenge J
5. Weak decisions will be subj to tests. Only the fittest decisions will survive

Not allowing Ct to hear cases will weaken centeral gov's authority over the st

1. Contradicting interpreations of fed law. Could undermine efficacy of fed law
2. Cong is a fed DM. As such we assume they reflect some tilt in favor of centralized power
3. Smart leg DN want to weaken fed gov so much that the power is reduced

Power of teh charimen: whether leg gets through depends on the leadership in the house & senate

1. Ldrship tends to be people wh been around a while
2. Often means that these people have a LT viwe of the institutional relationship b/w branches of fed gov
3. Reluctant to make significant adj in relationship b/w fed branches for short term reasons

McCulloch v Maryland

F: Congress created a bank. Baltimore branch. MD leg passed law saying that lal bankds ahd to apy a tax or else they can only print their currency on stamped paper. Bank refused to pay St of MD brought usit (McCulloch cashier fo the Baltimore Branch)

Issues in McCulloch
1. Does Congress have the power to incorporate a bank

1. Yes hardly an open question
2. Marshall makes a historical argument. Cong has thought @ it b/4 & done it b/4 2nd bank of the US.
3. Ct makes historical reference to the inc of Bank 1 & its necessity.
4. Analytical significance is that const interpreation is grounded in pragmatism

Where does Congress get hte power to inc bank

1. All power must come from C. Fundamental con law principal Fed govt is govt of enumerated (or delegated power)
2. Fed gov can only exercise those powers granted to it in the C. By contrast st gov power is not enumerated, their power is limitless. It inc general police power

Where again?

1. Nowehre in the C does it explicitly grant Cong the power to inc a bank
2. So somehow we go from fed govt is govt of enumerated powers Congress DNH power to create a bank, Congress inc a bnak

Congress also has implied powers

1. This is a neg inference: nothing in the C expressly limits Cong's powers
2. Based on a historical understanding. The Art of Confed contained a provision that expressly lmtd Congress only powers that were expressly granted to it. The limitation caused probs in teh central gov b/c it was w/o powers nec to deal w/serious ntl prob. B/C of prob the art were anabonded & the C was adopted
3. It WB anomalous to interpret the C as the same as the ARt if we abandoned the Art & adopted the C